Citation : LEGAL PROFESSION COMPLAINTS COMMITTEE and FIDOCK [2011] WASAT 78

Legal practitioner - Professional misconduct - False and misleading affidavits - Conflict of interest - Legal practitioner beneficiary under a will - Recklessness - Legal Profession Act 2008 (WA) s 403

Inheritance (Family and Dependants Provision) Act 1972 (WA)

Legal Practice Act 2003 (WA)

Legal Profession Act 2008 (WA), s 403

State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2), s 105(13)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 25, r, 26, r 27

Allinson v General Council of Medical Education and Registration (1894) 1 QB 750

Ardern v Bank of New South Wales [1956] VicLawRp 87; [1956] VLR 569

Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262

Calverley v Green [1984] HCA 81; (1984) 155 CLR 242

Catlin v Cyprus Finance Corporation [1983] QB 759

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Council of Queensland Law Society v Wright [2001] QCA 58

Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326

Derry v Peek [1889] UKHL 1; (1889) 14 App Cas 337

Ebner v The Official Trustee in Bankruptcy [2003] FCA 73; (2003) 126 FCR 281

Fadden v Deputy Federal Commissioner of Taxation [1943] HCA 20; (1943) 68 CLR 76

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594

Jones v Maynard [1951] Ch 572

Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56

Legal Practitioners Complaints Committee v Camp [2010] WASC 188

Legal Profession Complaints Committee v Fidock [2011] WASAT 78

Legal Profession Complaints Committee v Fidock [2011] WASAT 78 (S)

Magill v Magill [2006] HCA 51; (2006) 226 CLR 551

Maloney v Commissioner for Railways (1978) 52 ALJR 292; (1978) 18 ALR 147

Mercier v Mercier [1903] 2 Ch 98

Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481

Moore v Whyte (1922) 22 SR(NSW) 570

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Pettitt v Pettitt [1969] UKHL 5; [1970] AC 777

Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201

Rathwell v Rathwell [1978] 2 SCR 436

Re Bishop (deceased); National Provincial Bank Ltd v Bishop [1965] Ch 450

Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19

Re Reid (1998) 85 FCR 452

Re Rogers' Question [1948] 1 All ER 328

Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 262 FLR 1; [2012] WASCA 50

Rowe v Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1

Royal Brunei Airlines Bhd v Tan [1995] UKPC 4; [1995] 2 AC 378

Russell v Scott [1936] HCA 34; (1936) 55 CLR 440

Simonsen v Legge [2010] WASCA 238

Suttor v Gundowda Pty Ltd [1950] HCA 35 (1950) 81 CLR 418

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

1 Mr Steven Raymond Fidock, a legal practitioner, applies for an extension of time within which to bring an appeal, and for leave to appeal from a decision of the State Administrative Tribunal (the Tribunal) to the effect that he had engaged in professional misconduct contrary to s 403 of the Legal Profession Act 2008 (WA) (the 2008 Act) in three respects, namely:

(a) by swearing misleading affidavits in which he deposed that $116,257.73 held in a 'Telenet account' with BankWest was the property of the estate of the late Mr Nazzareno Antonio Argentieri, when those funds were not the exclusive property of the estate and made those misleading statements recklessly;

(b) that he treated moneys used to purchase a property in Forrest Street, South Perth as property of the estate of Mr Argentieri when there was a conflict between his personal interest as a beneficiary of Mr Argentieri's estate and the fiduciary duties which he owed to his client, Mrs Stanislawa Stephanie Argentieri; and

(c) that he treated the funds deposited with BankWest in the Telenet account as property of the estate of Mr Argentieri at the time the Forrest Street property was purchased, reckless as to whether Mrs Argentieri was or may have been the beneficial owner of those funds. (Legal Profession Complaints Committee v Fidock [2011] WASAT 78.)

2 Mr Fidock does not challenge a finding made by the Tribunal to the effect that he engaged in unsatisfactory professional conduct when he required Mrs Argentieri's granddaughter, Mrs Fiona Darby, to withdraw her complaint to the Legal Profession Complaints Committee (LPCC) and not take any part in the prosecution of that complaint as a condition of settlement of proceedings which she had commenced against the practitioner in his capacity as beneficiary of the estate of her late grandmother.

3 For the reasons which follow, Mr Fidock should be granted an extension of time within which to commence his appeal, and leave to appeal in respect of those grounds which challenge the Tribunal's finding to the effect that he acted recklessly. However, all grounds of appeal, and the appeal itself should be dismissed.

4 None of the grounds of appeal challenges the findings of primary fact made by the Tribunal. Rather, the grounds of appeal challenge the conclusions of law drawn by the Tribunal (with respect to the beneficial ownership of the funds held in the Telenet account), and the conclusions drawn from the findings of primary fact - namely, that Mr Fidock had acted recklessly and that Mrs Argentieri had not given informed consent to the practitioner's use of the funds in the Telenet account.

5 The findings of primary fact made by the Tribunal are not, as we have noted, contentious, and may be summarised as follows.

6 Mr Fidock carried on legal practice in his own right under the name 'Fidock Legal'. He employed his de facto wife, Ms Jane Ensor, as a legal practitioner in the practice.

7 Mr Nazzareno Antonio Argentieri and Mrs Stanislawa Stephanie Argentieri married in 1985 when each was of advancing years. Mr Argentieri had no children. Mrs Argentieri had previously been married, and had a daughter (Mrs Irene Hoey) and two grandchildren (Mrs Fiona Darby and Mr Adrian Hoey).

8 In July 2000, Mr and Mrs Argentieri retained Mr Fidock to prepare wills for each of them. Both wills were dated 29 July 2000, and in each the testator left their estate to the other, with a neighbour nominated as residuary beneficiary. Mr Fidock again prepared wills for Mr and Mrs Argentieri on 24 July 2002. On this occasion, each left their estate to the other, with Mrs Hoey as the residuary beneficiary of each estate.

9 In October 2003, Mr and Mrs Argentieri instructed another firm of solicitors, Godfrey Virtue and Co, to recover Mrs Argentieri's contributions to property owned by her former husband, and also to recover certain moneys from Mrs Hoey. Acting on advice from Godfrey Virtue and Co, Mr and Mrs Argentieri asked Mr Fidock to prepare further wills for them, removing Mrs Hoey as a residuary beneficiary. In these wills, Mr and Mrs Argentieri each appointed Mr Fidock as the executor of their respective estates, and each left their estate to the other, nominating the Benedictine Community of New Norcia as the residuary beneficiary of each estate.

10 In about February 2004, Mr Fidock and Ms Ensor started meeting with Mr and Mrs Argentieri socially. At about the same time, Mr and Mrs Argentieri told Mr Fidock that they wanted him to prepare new wills for them and that he was to be a beneficiary. Mr Fidock declined to carry out those instructions, and instead referred Mr and Mrs Argentieri to another lawyer, Mr Rodney Tatchell. Mr Tatchell visited Mr and Mrs Argentieri on 29 March 2004, provided them with legal advice and prepared wills which they executed in his presence. In these wills, Mr and Mrs Argentieri left their respective estates to each other.

11 Mr Fidock was identified as the residuary beneficiary in both wills, and was also appointed as the executor of both estates, with Ms Ensor being the alternative executor. Mrs Argentieri's will made no provision for Mrs Hoey and gave reasons for that deliberate omission.

12 Mr Tatchell also prepared enduring powers of attorney for each of Mr and Mrs Argentieri, by which each appointed Mr Fidock and the other as joint and several attorneys. The LPCC alleged, and Mr Fidock admitted, that Mr Tatchell telephoned Mr Fidock after his meeting with the Argentieris and informed him that he had prepared the wills, that each client had named Mr Fidock as a residuary beneficiary, and that he had discussed with Mr and Mrs Argentieri the prospect of a claim being made by Mrs Hoey under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Inheritance Act).

13 It was accepted by the parties that Mr and Mrs Argentieri advised Mr Tatchell that they did not want to leave any part of their joint estate to Mrs Hoey and wanted to prevent her from making a successful claim against Mrs Argentieri's estate under the provisions of the Inheritance Act.

14 In his evidence to the Tribunal, Mr Tatchell said he advised Mr and Mrs Argentieri that the joint tenancy of property which they owned at 5 Roseberry Avenue, South Perth could be severed, which would enable Mr Argentieri's interest in the property to be provided for Mrs Argentieri on trust during her life and on her death to the residuary beneficiary under Mr Argentieri's will (namely, Mr Fidock). Mr Tatchell gave this advice for the purpose of reducing the size of the estate that may be subject to a claim from Mrs Hoey, and further advised that he would prepare another will to give effect to this objective. In his evidence to the Tribunal, Mr Tatchell said:

[B]ecause of their concern to protect the estate from a potential claim by the daughter I was wanting to let them know what strategies they could employ to reduce the exposure of the estate to a potential claim. And so I advised them that [severing the joint tenancy] would be a way of protecting the estate so that a limited amount of property would be available to be contested (ts 24).

15 Mr Tatchell did not have a specific recollection of the advice he gave in relation to investments other than the Roseberry Avenue property (ts 26 - 27). However, he asserted in his statement dated 15 February 2011 that he 'would also' have communicated with the Argentieris about their other assets, as it was his practice to give advice of this nature where there was a prospect of an Inheritance Act claim. Mr Fidock also gave evidence that Mr Tatchell gave advice in relation to other joint assets. As will be discussed below, this evidence led the Tribunal to conclude that Mr Tatchell gave advice about dealing with other jointly owned assets [52]. In the course of correspondence with the LPCC in relation to the complaint made against Mr Fidock, Mr Tatchell advised that he had not provided advice that all the bank accounts should be held in Mr Argentieri's name. In his oral evidence, he retreated from this position somewhat, stating that whilst he may have provided some advice in relation to personal property, he could not remember the details of any such advice and he had no records of the advice given.

16 On or about 6 April 2004, Mr Tatchell prepared a further will for Mr Argentieri which was executed that day. This will appointed Mr Fidock to be the executor and trustee of all real and personal estate, and bequeathed to Mr Fidock Mr Argentieri's interest in the Roseberry Avenue property, upon trust to permit Mrs Argentieri to have occupation and enjoyment of the property until her death and thereafter to Mr Fidock for his own use and benefit. The will also made provision for the balance of the estate to be divided into two funds, an income and capital fund, with Mrs Argentieri being the life tenant of the funds. On the death of Mrs Argentieri, Mr Fidock was to hold the unallocated balance of the funds for his own use and benefit. Mr Fidock had possession of both Mr and Mrs Argentieri's wills.

17 In December 2005, Mr and Mrs Argentieri moved from their property in Roseberry Avenue to a nursing home, and engaged removalists to pack and store their personal belongings. A sum of $248,670 in cash was found in a false bottom of one of the wardrobes (Wardrobe Money). Mr and Mrs Argentieri informed Mr Fidock that the money belonged to Mr Argentieri. The wardrobe money was provided to Mr Fidock who stored it initially in a safe in his office, then, on instructions, in a safe deposit box at a bank.

18 By 12 January 2006, it had been decided that Mr Argentieri would move to a nursing facility, necessitating the payment of an accommodation bond of $70,000 to the managers of that facility. At that time, Mr and Mrs Argentieri had two accounts in their joint names at BankWest - a term deposit to the value of $150,000 (Joint Term Deposit) and a reward saver account containing approximately $28,000 (Joint Saver account). On 12 January 2006, Mr Fidock became a signatory to the Joint Term Deposit, and paid the bond required by the nursing facility with money from that account. In March 2006, Mr Fidock became a signatory on the Joint Saver account. He closed the Joint Term Deposit, transferring the funds from that account to the Joint Saver account, and opened a new BankWest account in the name of Mr Argentieri only (Telenet account). He transferred the balance of the funds from the Joint Saver account into that account. Mr Fidock was authorised to operate the Telenet account. The terms upon which the bank provided the Telenet account required that it be linked to another account, which was the Joint Saver account. Interest from the Telenet account was credited to the Joint Saver account by the bank, and funds could not be withdrawn directly from the Telenet account, but only transferred to the Joint Saver account, from which they could then be withdrawn.

19 Mr Argentieri died on 2 April 2006. On 6 June 2006, Mr Fidock deposited the wardrobe money into a Challenge Bank account in the name of the estate of the late Nazzareno Argentieri (Challenge account).

21 On 16 June 2006, Mr Fidock applied for probate of Mr Argentieri's will. In support of the application, Mr Fidock filed three affidavits. The first was sworn on 16 June 2006, and stated that Mr Argentieri's estate included funds held in the Telenet account ($116,257.73), the Challenge account ($248,670) and a bond refund due from the aged care facility ($69,203.50).

22 Mr Fidock's affidavits of 21 June 2006 and 28 June 2006 each corrected information given in the first affidavit. The affidavit of 21 June 2006 added an old car worth $1,500 to the list of assets. The affidavit of 28 June 2006 corrected the date given in the first affidavit in respect of Mr Argentieri's will from 24 March 2004 to 6 April 2006. In each of the affidavits of 21 June 2006 and 28 June 2006, Mr Fidock otherwise affirmed the statements made in the first affidavit, including the statements with respect to the ownership of the moneys in the bank accounts. In the affidavits of 16 and 21 June 2006, Mr Fidock deposed to the asserted facts and added 'and I believe the same to be true and correct'.

23 On 6 July 2006, in anticipation of the grant of probate, Mr Fidock entered into a contract to buy a property in Forrest Street, South Perth (Forrest Street property) in the name of the estate of Mr Argentieri. In preparation for settlement, the total remaining balance in the Telenet account ($116,257.73) was transferred from that account to the Joint Saver account. Interest on the Telenet account in the amount of $2,847.51 was also credited to the Joint Saver account. On 3 August 2006, Mr Fidock deposited approximately $70,000 received by way of bond refund from the nursing facility into the Challenge account. The funds in the Joint Saver account, together with $304,795 from the Challenge account were used to pay the purchase price of the Forrest Street property. Settlement of the purchase of the Forrest Street property took place on 22 August 2006.

25 In November 2006, Mr Fidock renounced his right to apply for probate of Mrs Argentieri's will. Ms Ensor, Mr Fidock's de facto partner and a solicitor at his firm, applied for probate of Mrs Argentieri's estate in her capacity as an employee of Mr Fidock. Probate was granted to Ms Ensor on 16 November 2006. On 1 February 2007, the Forrest Street property was vested in Mr Fidock beneficially, free of any trust.

26 On 14 February 2007, Mrs Darby (Mrs Argentieri's granddaughter) complained to the LPCC in relation to Mr Fidock's conduct.

27 On 9 May 2007, Mrs Darby commenced proceedings in the Supreme Court pursuant to the provisions of the Inheritance Act seeking provision from Mrs Argentieri's estate. Mr Fidock was a respondent to those proceedings. On 23 September 2007, solicitors acting on behalf of Mr Fidock, and on his instructions, wrote to the solicitors acting for Mrs Darby offering to compromise her claim on terms which included a requirement that Mrs Darby withdraw her complaint to the LPCC. On 15 November 2007, Mrs Darby commenced further proceedings relating to the severance of the joint tenancy of the Roseberry Avenue property, and relating to the funds which were said to comprise Mrs Argentieri's estate.

28 All proceedings were settled at a mediation which was conducted on 10 February 2009. A term of the settlement stipulated that Mrs Darby withdraw her complaint against Mr Fidock and take no further action in relation to that complaint, except to the extent to which she was legally obliged to do so.

29 It was accepted by Mr Fidock that, at all material times, he 'knew or ought to have known (as was the fact) that Mrs Argentieri placed trust and confidence in him as her solicitor, attorney and signatory to the BankWest Reward Saver Account, to act in her best interest, and the Practitioner thereby owed Mrs Argentieri fiduciary duties' (par 70 of each of LPCC's statement of facts and contentions Mr Fidock's defence; also reasons [138]).

30 The LPCC alleged that Mr Fidock had engaged in professional misconduct in five respects, namely:

1. Carrying out legal work to effect the severance of the joint tenancy of the Roseberry Avenue property in circumstances in which there was a real and sensible possibility of conflict between Mr Fidock's personal interests as a residuary beneficiary under the wills of each of Mr and Mrs Argentieri, and his fiduciary duties to Mrs Argentieri as a solicitor.
2. Swearing three affidavits in support of his application for probate of the will of the late Mr Argentieri which were misleading by deposing that the moneys in the Telenet account, the Challenge account and the refund due from the nursing facility were all assets of the estate of the late Mr Argentieri and in circumstances where he knew those affidavits to be misleading at the time he swore them, or alternatively was reckless as to whether or not they were misleading.
3. Mr Fidock treated the moneys referred to in the affidavits the subject of ground 2 as property of the estate of the late Mr Argentieri in circumstances in which there was a conflict or a real sensible possibility of conflict between his personal pecuniary interests as a beneficiary under the will of Mr Argentieri, and his fiduciary duties to Mrs Argentieri; or, alternatively, the practitioner profited from or by reason of his fiduciary position.
4. Mr Fidock improperly treated the moneys referred to in the affidavits the subject of ground 2 as property of the estate of the late Mr Argentieri in circumstances in which he knew or acted in reckless disregard of the fact that Mrs Argentieri (or after her death, her estate) was or may have been the owner of those moneys.
5. Mr Fidock required as a condition of the compromise of the Supreme Court proceedings brought by Mrs Darby that she withdraw her complaint to the LPCC.

The reasons of the Tribunal and professional misconduct

31 The Tribunal commenced its reasons by observing that the conduct the subject of the complaints brought by the LPCC occurred during the period between February 2005 and February 2009, and pre-dated the commencement of the 2008 Act on 1 March 2009. At the time of the alleged misconduct, the Legal Practice Act 2003 (WA) (the 2003 Act) was in force. However, as the Tribunal correctly noted, the effect of s 622 of the 2008 Act is to provide that conduct which constituted a contravention of the 2003 Act is to be treated as constituting a contravention of the 2008 Act (see Legal Practitioners Complaints Committee v Camp [2010] WASC 188 [6] - [7]).

32 There has been no suggestion that, for the purposes of this case, there is any material distinction between the ambit of the conduct proscribed by the 2003 Act as compared to the ambit of the conduct proscribed by the 2008 Act. Further, the proceedings before the Tribunal and in this court have been conducted on the basis that the approach taken to the identification of conduct which constitutes professional misconduct should be that enunciated in Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 [61] 2008. In that case, 'unprofessional conduct' (being the expression used in the legislation then in force) was taken to mean conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.

33 We digress to observe here that s 403 of the 2008 Act provides:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

34 It is to be noted that the definition of 'professional misconduct' in s 403(1) of the 2008 Act is an inclusive definition.

35 The test of professional misconduct was originally formulated in relation to medical practitioners in Allinson v General Council of Medical Education and Registration (1894) 1 QB 750. It was held that professional misconduct consisted in behaviour on the part of the practitioner which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency. That criterion has been applied in relation to both solicitors and barristers: Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201, 203. The Allinson test, so formulated, was not, however, intended to be, or to provide, an exhaustive definition of what could constitute professional misconduct: Prothonotary v Costello (207).

36 The Allinson formulation is not dissimilar to the first limb of the test of 'unprofessional conduct' in Kyle [61]. The second limb in Kyle [61] is not dissimilar to the definition of professional misconduct found in s 403(1)(a) of the 2008 Act.

37 Returning to the Tribunal's reasons, the Tribunal made the findings of primary fact which we have already summarised. In relation to the first ground of the LPCC's complaint, the Tribunal concluded that Mr Fidock was not guilty of professional misconduct because Mr and Mrs Argentieri gave informed consent to the severance of the joint tenancy in the Roseberry Avenue property after they had received independent legal advice from Mr Tatchell. In this context, the Tribunal found that it was satisfied that Mr Tatchell gave advice about dealing with 'other jointly owned assets' (reasons [46], [52]).

38 In relation to ground 2 of the complaint, the Tribunal found that the wardrobe money, and the Challenge account into which that money was deposited, and the refund of the bond money due from the nursing facility were the sole property of Mr Argentieri, and that therefore Mr Fidock's affidavits were correct and not misleading in respect of those items of property. However, the Tribunal concluded that Mrs Argentieri had an interest in the chose in action represented by the Telenet account, with the result that each of the affidavits was incorrect and to that extent misleading in asserting that the funds standing to the credit of that account were, in their entirety, property forming part of the estate of the late Mr Argentieri.

39 The Tribunal noted the evidence given by Mr Fidock to the effect that he believed that Mrs Argentieri had no interest in the Telenet account, and that therefore his affidavits were accurate. The Tribunal concluded that it was not satisfied to the requisite degree that Mr Fidock knew the affidavits to be false at the time they were made. However, after referring to the decision of Lord Nicholls in Royal Brunei Airlines Bhd v Tan [1995] UKPC 4; [1995] 2 AC 378, the Tribunal concluded that Mr Fidock had made the affidavits recklessly. The Tribunal found Mr Fidock to be guilty of professional misconduct on that basis. It will be necessary to refer in greater detail to the precise basis of the Tribunal's reasoning with respect to recklessness later in these reasons.

40 In relation to grounds 3 and 4, the Tribunal reiterated its earlier conclusion that Mrs Argentieri had an interest in the Telenet account and concluded that Mr Fidock had used the funds represented by that account to acquire the Forrest Street property in circumstances in which there was a conflict between his personal interest as the beneficiary of Mr Argentieri's estate, and his fiduciary duties to Mrs Argentieri, and recklessly as to whether Mrs Argentieri was or may have been the owner of those funds. The Tribunal concluded that Mr Fidock's conduct in these respects constituted professional misconduct, and that therefore grounds 3 and 4 were made out. In relation to ground 5 of the complaint, the Tribunal concluded that Mr Fidock's conduct in requiring Mrs Darby to withdraw the complaint she had made to the LPCC as a condition of settlement of her claims constituted unsatisfactory professional conduct, rather than professional misconduct, consistently with the concession made by the LPCC to that effect at the commencement of the hearing before the Tribunal.

41 The LPCC has not challenged any aspect of the Tribunal's decision, nor has Mr Fidock challenged the decision of the Tribunal in relation to ground 5 of the LPCC's complaint. Accordingly, it is unnecessary to give any further consideration to issues relating to the severance of the joint tenancy in the Roseberry Avenue property, the imposition of a condition requiring Mrs Darby to discontinue her complaint against Mr Fidock, or the LPCC's complaints insofar as they relate to the wardrobe money or the moneys provided by way of refund of the bond paid to the nursing facility.

42 Following a further hearing on the subject of penalty, the Tribunal determined that in respect of the findings of professional misconduct, Mr Fidock should be suspended from legal practice for a period of two years, and that a condition should be imposed on his practising certificate for a period of one year to the effect that he must practise under the supervision of the holder of an unconditional local practising certificate. In respect of the finding of unsatisfactory professional conduct, the Tribunal determined that he should be fined $3,000 (Legal Profession Complaints Committee v Fidock [2011] WASAT 78 (S)). The penalty imposed by the Tribunal is relevant to the ambit of the appeal to this court, a matter to which we will now turn.

43 Section 105(2) of the State Administrative Tribunal Act 2004 (WA) (the Tribunal Act) provides that an appeal from a decision of the Tribunal can only be brought on a question of law. However, s 105(13) provides that despite subsection (2), if the Tribunal's decision has the effect of depriving a person of his or her capacity to lawfully pursue a vocation, an appeal may be brought on any ground, whether it involves a question of law, a question of fact, or a question of mixed law and fact.

44 In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, it was held that s 105(13) was not limited to cases in which the effect of the Tribunal's decision 'was to permanently or indefinitely deprive a person of his or her capacity to lawfully pursue a vocation, and extended to cases in which that effect was temporary or only occurred over a finite period'. It follows that the Tribunal's decision to suspend Mr Fidock from practice for a period of two years has the consequence that his appeal is not limited to questions of law, but may be brought on any ground of fact or law or mixed fact and law. The LPCC did not contend otherwise.

45 Section 105(1) of the Tribunal Act provides that an appeal may only be brought from a decision of the Tribunal with leave of the court to which the appeal is brought. The principles governing the grant of leave to appeal in this context are well settled and are set out in Paridis. There is a general discretion to grant leave which will be exercised in favour of the grant of leave if, in all the circumstances, it is in the interests of justice that leave be granted. Generally speaking, leave will be granted if there is a real or significant argument to be put in support of the appeal, such that there is sufficient doubt with respect to the decision of the Tribunal to justify the grant of leave and if substantial injustice would occur if the asserted error went uncorrected.

46 It follows that the proper exercise of the discretion with respect to the grant of leave to appeal generally depends in part upon an assessment of the strength of the grounds of appeal. It is therefore appropriate to return to the issue of leave after a consideration of those grounds. It is sufficient for present purposes to note that for the reasons which follow, we have concluded that there is sufficient strength in the arguments advanced with respect to the Tribunal's characterisation of Mr Fidock's conduct as 'reckless' to justify the grant of leave in respect of the grounds of appeal which address that issue, but not otherwise.

47 Mr Fidock also applies for an extension of time within which to commence his appeal. That application is supported by an affidavit from his solicitor who deposes that although Mr Fidock's notice of appeal was filed within the time specified by Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, he mistakenly considered that it was not necessary to serve the notice of appeal within that time (but see r 27 and r 29(1)). In the course of a telephone conversation with the relevant officer of the LPCC which took place prior to the expiry of the time within which an appeal was to be commenced, that officer was advised of Mr Fidock's intention to appeal. However, due to the mistake to which we have referred, the notice of appeal was not served until approximately six weeks after the time limited for the commencement of Mr Fidock's appeal by r 26.

48 There are many cases dealing with the principles governing the exercise of the court's discretion to extend the time within which an appeal is to be commenced. The general principles, and some of the cases, are conveniently set out in Simonsen v Legge [2010] WASCA 238 [8] and need not be restated. Relevant factors include the length of the delay, the reasons for the delay, the extent of any prejudice to the respondent by reason of the delay, and the prospects of success on the appeal. In this case, the delay was not inordinate, and was occasioned by a mistake on the part of Mr Fidock's solicitor, and cannot be attributed to any fault or neglect by Mr Fidock. The LPCC concedes that it has not suffered any prejudice by reason of the delay in service of the notice of appeal. Accordingly, in this particular case, the question of whether time should be extended turns to a significant extent upon the strength of the grounds of appeal. The question should therefore be revisited following consideration of those grounds. However, for the reasons which follow, as we have concluded that leave to appeal should be granted in respect of those grounds which address the Tribunal's characterisation of Mr Fidock's conduct as reckless, an extension of time within which to commence an appeal raising those grounds should be granted.

49 There are five grounds of appeal. They are, to an extent, repetitive. Rather than set out the various grounds in full, it is preferable to identify the contentions advanced in those grounds which are:

1. The Tribunal erred by concluding that Mrs Argentieri retained a proprietary interest in the funds in the Telenet account at the time of and after the death of Mr Argentieri (grounds 1, 3(a) - (c), and 4).
2. The Tribunal erred in considering that, as at 6 July 2006, a reasonable person would have concluded that there was genuine room for disagreement with respect to the ownership of the wardrobe money, the Telenet account funds and the bond refund (ground 3(d)).
3. The Tribunal erred in concluding that Mrs Argentieri had not given informed consent to the funds in the Telenet account being treated as the property of the estate of Mr Argentieri (ground 3(e)).
4. The Tribunal erred by characterising Mr Fidock's conduct in swearing the misleading affidavits, and in dealing with the funds in the Telenet account when purchasing the Forrest Street property as reckless (grounds 2 and 5).

Issue 1 - the ownership of the chose in action represented by the Telenet account

50 On behalf of Mr Fidock, it is now contended that the Tribunal erred by concluding that Mrs Argentieri had a proprietary interest in the chose in action represented by the Telenet account. It is submitted that the Tribunal should have concluded that Mrs Argentieri did not have any proprietary interest in that chose in action at any time after the creation of the account. Senior Counsel for Mr Fidock conceded, quite properly (see below), that this was not how his case was presented to the Tribunal, and that the proposition that Mrs Argentieri never had any interest in the Telenet account has been raised for the first time on this appeal (appeal ts 6 - 7). Accordingly, the first question which must be addressed is whether Mr Fidock should be permitted to present a different case on appeal to that which was presented to the Tribunal. In order to address that question, it is necessary to look closely at the way in which the case was conducted before the Tribunal.

51 Mr Fidock's evidence-in-chief to the Tribunal was given by means of the tender of a signed written statement augmented by relatively brief oral testimony. In the next portion of these reasons, numerical references are references to the numbered paragraphs in the statement which was tendered as part of Mr Fidock's evidence-in-chief.

52 In his witness statement, Mr Fidock said that Mr and Mrs Argentieri had asked him to ensure that the surplus funds remaining in their Joint Saver account and Joint Term Deposit after the accommodation bond was paid be deposited in a new term deposit in Mr Argentieri's name only [155]. He stated that he opened the Telenet deposit account, preferring the product over a conventional term deposit 'because it could be linked to the existing joint savings account and all of the interest earned was paid to the existing joint account', and that if the deposit was terminated by Mr or Mrs Argentieri 'all of the capital would be returned to the existing joint account' [157] - [158]. He considered the Telenet deposit to be 'preferable' to a conventional term deposit as Mrs Argentieri's interest in the capital and interest of the term deposit remained unchanged unless Mr Argentieri died [159], as compared to the conventional deposit where Mrs Argentieri would have no rights to the interest or return of capital [160]. In his statement, Mr Fidock asserted that upon Mr Argentieri's death, under the Telenet account 'the capital formed part of his deceased estate and would be held by the terms of his will on trust for [Mrs Argentieri]' [161]. Mr Fidock said that he explained to Mr and Mrs Argentieri that if Mr Argentieri died, the capital in the Telenet account would form part of his estate in the following terms; namely, that 'if [Mr Argentieri] were to kick the bucket, the capital will form part of [his] estate' and that Mr and Mrs Argentieri confirmed that this was their intention [162]. In his statement he asserted that he believed that upon Mr Argentieri's death, 'the capital of the term deposit was held in his sole name and it formed part of his deceased estate' [164].

53 Consistently with his witness statement, during his oral evidence-in-chief Mr Fidock stated that:

When I established the account I asked the fellow at BankWest ... what the nature of the product was. He said ... the capital can be held in one name. I subsequently, a couple of days later, after the account was established, rang the bank to confirm whether or not the term deposit was held in the sole name of Mr Argentieri and was told by the bank officer that it was. The conclusion I drew from that was that if Mr Argentieri died, then that would form part of his deceased estate

...

When I started looking at various term deposits, I was introduced to this Telenet term deposit and I preferred it because it appeared to protect Mrs Argentieri's interests in that the capital could be held in one name, that is the name of Mr Argentieri, but that any interest earned, and if the term deposit was broken while they were alive, the capital necessarily had to go back to the linked joint account and I thought that that protected Mrs Argentieri's interests and that's why I preferred it over simply moving the money to a regular or conventional term deposit. That's why I preferred it over simply moving the money to a regular or conventional term deposit. That's why I preferred that account over a normal one because it seemed to not only line up with what Mr and Mrs Argentieri wanted; it seemed to line up with what Mr Tatchell had advised them to do, but it also seemed to protect Mrs Argentieri's interest because if they had have gone to a general normal conventional term deposit, Mrs Argentieri would have no rights in respect of that term deposit (ts 57 - 58).

54 Under cross-examination, Mr Fidock confirmed that it was his understanding at the time he opened the Telenet account that all interest accruing in that account would be paid into the Joint Saver account, and that if the Telenet account was closed, the capital funds represented by the account would be credited to the Joint Saver account (ts 39). He said that one of the reasons why he chose the Telenet account was that Mrs Argentieri would retain the power to terminate the deposit if Mr Argentieri also agreed to that course, after which the capital would be repaid to the Joint Saver account (ts 40). Mr Fidock gave further evidence that Mrs Argentieri had an 'interest' in the funds in the Telenet account:

And in fact the reason for you choosing the Telenet account was because you've consciously made a decision that you thought Mrs Argentieri's interest in the money should be protected?---Yes.

You made the observation in your evidence yesterday that in an ordinary term deposit she would have no rights to the money?---Correct.

But under this arrangement she would have rights to the money?---While they were alive, yes.

I know you add that qualification. I'll come back to that.

But while she was alive, at least, she had an interest in the money?---She had more rights than she would otherwise have had under a conventional term deposit, yes.

Can you try and make the point of my question, she had an interest in the money?---Yes.

That was something that was conscious to you at the time and the very reason for choosing this arrangement?---Yes. (ts 40 - 41)

55 During Mr Fidock's cross-examination, the presiding member of the Tribunal raised the apparent inconsistencies in this evidence with Mr Fidock, and said as follows:

I'm sorry, at the risk of labouring that point, Mr Fidock, if it was important from the point of view of Mr Tatchell's advice to Mr and Mrs Argentieri that Mrs Argentieri didn't have any interest in that money, why would you not open a linked account in the name of Mr Argentieri and get rid of the term deposit? I mean, if you were trying to make sure that the money was Mr Argentieri's only, would you not just simply say to Mrs Argentieri, 'Well, give him the money. To the extent that you have any interest in it, just give it to him.'

...

[I]f the aim was to make sure that the money was Mr Argentieri's - why you would have maintained a joint account, particularly when one of the aspects of that joint account is in the event that - well, even if the term deposit matures the money just goes back into the joint account and therefore, one assumes, becomes the joint property of Mr and Mrs Argentieri (ts 41).

56 However, Mr Fidock continued to contend that Mrs Argentieri was to have an interest in the money until her husband's death:

... The proposition you put is that in this case when Mr Argentieri died that would somehow cause Mrs Argentieri's interest in the moneys to evaporate. Is that the proposition that you put?---Yes, because the capital fell into his estate.

Yes, that's the contention you make, that the capital fell into his estate, but that puts the cart before the horse, because the real question is whether, as you contend, Mrs Argentieri's interest evaporated upon her husband's death, isn't it?---Yes.

Ordinarily, if people own money as a joint tenant, it is the person who dies whose interest evaporates on their death, and it succeeds to the other co-tenant?---That's right.

The proposition you put here is the opposite of that?---No, it's not. The capital was held in Mr Argentieri's sole name.

And Mrs Argentieri had an interest in the moneys?---She had an interest, yes.

And that interest evaporated on your evidence upon his death?---Yes.

What principle, what proposition of law, what authority do you rely on for that proposition? What legal process of reasoning do you rely on?---If a person owns an asset in their sole name and they die, that asset forms part of their deceased estate.

If they don't own the asset in their sole name, and someone else has an interest in the asset, it does not form part of their estate?---But he did own it in his sole name. That was confirmed to me by the bank.

JUDGE SHARP: While it was in the Telenet saver account?---Yes, sir.

But in the event that the money was transferred out of the Telenet saver account, it somehow became the joint property, because it went back into the joint account?---That's correct, sir.

...

CUERDEN, MR: I won't labour this point unnecessarily, but the analysis that you put forward depends on Mr Argentieri being the sole owner, and Mrs Argentieri having no interest in the money. Correct?---Well, it not being in her name. That's what it depends on.

Well, this is the point I asked you about earlier. I asked you earlier whether this expression of holding money in someone's name - how you understood that expression, and you understood it here to mean that he was in law the sole owner of the moneys?---Yes.

But you've agreed that she had an interest in the moneys. Correct?---While they were alive, yes.

I know you add that qualification, but she had an interest in the money while they were alive?---Yes.

And your proposition is that upon Mr Argentieri dying, she lost her interest in the money?---Yes.

Yes, I'm going to invite the Tribunal at the end of the day to reject that proposition, and find that there is absolutely no basis in law for that conclusion. Is there any particular principle or doctrine of law or authority that you want to bring to the Tribunal's attention to support that proposition, that upon Mr Argentieri dying, his wife lost her interest in the money?---Well, I wrote to the bank and they confirmed it (ts 42 - 44).

57 Moreover, later during cross-examination, Mr Fidock was asked whether at the time he swore the affidavits, he was aware that the Telenet account had been created so as to preserve Mrs Argentieri's interest in the moneys. He confirmed that he was (ts 69).

58 There was no relevant re-examination on these issues.

59 Mr Fidock's position was not clarified by the closing submissions of his counsel. At one point, his counsel submitted that Mrs Argentieri's 'interest' in the Telenet account was limited to the interest accruing on that account which was credited to the Joint Saver account (ts 61 - 62). When a member of the Tribunal put to counsel that this proposition was inconsistent with Mr Fidock's evidence, which was to the effect that it was his understanding that Mrs Argentieri had an interest in the principal in the Telenet account, counsel responded to the effect that Mrs Argentieri's relevant interest was the life interest which she had in her husband's assets under his will. A member of the Tribunal pointed out that this proposition was directly contrary to Mr Fidock's evidence, which was to the effect that Mrs Argentieri's interest did not arise upon the death of her husband, but 'evaporated' when he died. Senior Counsel for Mr Fidock responded to the effect that he was confused about the questions and answers put on that topic. Senior Counsel was unable to reconcile that evidence with the proposition which he was putting. When the closing submissions are viewed in the context of the evidence given by Mr Fidock, the concession made by counsel on the appeal to the effect that the case now advanced is not the case that was advanced before the Tribunal is properly made.

60 The Tribunal noted that the Telenet account was created by withdrawing funds from the Joint Saver account. After referring to authorities, the Tribunal held (correctly - see below), that whether funds withdrawn from a joint account to acquire an asset in the sole name of one of the parties resulted in that asset being held beneficially solely for the party in whose name it was acquired, or on trust for both parties, depended upon the intention of the parties at the time of the withdrawal of the funds for the purpose of acquiring the relevant asset.

61 The Tribunal referred to the evidence of Mr Fidock on the topic, and which we have set out above. In reliance upon that evidence, the Tribunal held that Mrs Argentieri retained a proprietary interest in the funds standing to the credit of the Telenet account at all relevant times. The reasons given for that conclusion were as follows:

The evidence given by the respondent leads to the conclusion that Mrs Argentieri had an ongoing proprietary interest in the Telenet Account because it was not intended that she would lose all rights upon transfer of funds to the Telenet Account. It was intended that she could call for the return of Telenet Account funds. Once funds had been returned from the Telenet Account, they could be directly and independently accessed by her. The evidence in the respondent's statement is confirmed by the evidence given in cross­examination set out above.

The Tribunal notes that 'interests' can sometimes refer to matters which concern or affect a person and that the expression 'interest' was sometimes used in the evidence in this sense. 'Interest' can also be used to refer to the monies paid by banks on some bank deposits. Interest, in this sense, was paid on the Telenet Account and 'interest' was also used in this sense during the course of the evidence. The Tribunal is satisfied that these were not the sense in which 'interest' was used in the passages set out above.

The Tribunal is satisfied that Mrs Argentieri had an 'interest' in the Telenet Account funds and that this interest amounted to partial ownership of it.

The respondent argued that Mrs Argentieri's interest in the Telenet Account Funds came to an end when Mr Argentieri died. If this contention is correct, the respondent's affidavits were true and correct. However, the Tribunal considers that this contention is not correct. In cross­examination, the respondent was unclear about why Mrs Argentieri's interest should be extinguished on Mr Argentieri's death. His explanations in cross­examination were not in accordance with established legal principle. He appears to have placed great importance on the Telenet Account being in the 'name' of Mr Argentieri. For the reasons stated above, the name in which an account is held is not conclusive, at law, as between the parties.

The respondent also said that both Mr and Mrs Argentieri wanted the funds to form part of his estate on his death, not Mrs Argentieri's. However, simply opening an account in the name of Mr Argentieri would not have this effect if, as the Tribunal has found, the relevant intention was that Mrs Argentieri would continue to have an interest in the Telenet Account while she was alive.

In summary, the Tribunal considers that Mrs Argentieri had an interest in the funds in the Telenet Account at the time of Mr Argentieri's death and that her interest continued after Mr Argentieri's death. The affidavits were, therefore, misleading in relation to the Telenet Account [107] - [112].

62 It is clear from this passage in the Tribunal's reasons that it dealt with the case on the basis of Mr Fidock's repeated assertion, in his evidence, to the effect that Mrs Argentieri had an interest in the funds in the Telenet account which came to an end when Mr Argentieri died. However, as we have noted, the argument advanced on behalf of Mr Fidock on appeal is to the effect that the Tribunal should have held that Mrs Argentieri never had any relevant interest in the funds standing to the credit of the Telenet account. Before addressing the question of whether that contention should be permitted, it is appropriate to refer briefly to the relevant legal principles relating to proprietary interests in assets acquired using funds withdrawn from jointly held bank accounts.

63 The deposit of funds into a bank account in joint names creates a debt owed by the bank to the account holders jointly: Russell v Scott [1936] HCA 34; (1936) 55 CLR 440, 448 (Starke J), 457 (McTiernan J); Fadden v Deputy Federal Commissioner of Taxation [1943] HCA 20; (1943) 68 CLR 76, 82 - 83 (Williams J). Unless the terms of the account permit the bank to discharge the debt by releasing the funds to or at the direction of one of the parties to the account, the debt owed by the bank can only be discharged by payment to or with the authority of both parties jointly: Catlin v Cyprus Finance Corporation [1983] QB 759, 768 - 771 (Bingham J); Ardern v Bank of New South Wales [1956] VicLawRp 87; [1956] VLR 569. The property represented by the account is properly described as a chose in action, being the right to enforce the debt as against the bank. If one of the account holders survives the other, ordinarily the entire interest in the account will pass to the survivor by the process of survivorship (Russell (448)).

64 It follows that, in the present case, the chose in action represented by the Joint Saver account was the property of both Mr and Mrs Argentieri. The funds withdrawn from that account to create the Telenet account were, prior to their withdrawal, the subject of the chose in action in which Mr and Mrs Argentieri each had an interest. The credit of the interest accrued on the Telenet account to the Joint Saver account added to the jointly owned chose in action. Under the terms of the Telenet account, any funds withdrawn from that account, including funds made available by closure of the account, had to be credited to the Joint Saver account, thereby adding to the jointly held chose in action. The question is whether Mrs Argentieri retained any proprietary interest in the chose in action represented by the Telenet account between the time when the funds deposited into that account were withdrawn from the Joint Saver account, and before they were returned to that account. Although, as will be seen, the cases bearing upon that issue are somewhat difficult to reconcile, they establish that the question is to be resolved by reference to the intention of Mr and Mrs Argentieri at the time the funds were withdrawn from the Joint Saver account in order to create the Telenet account.

Re Bishop (deceased); National Provincial Bank Ltd v Bishop [1965] Ch 450

65 In Re Bishop [1965] Ch 450, a husband and wife had a joint bank account, which was used for both day-to-day household expenses and investments. In some instances, investments were made in the name of both spouses, and in others withdrawals were used to acquire investments in the name of only one. After the death of the husband, the court was asked to determine whether the wife was entitled to any beneficial interest in investments purchased in the husband's name using moneys withdrawn from the joint account. Stamp J held that it ought not be presumed that the assets acquired using funds withdrawn from the joint account belong to the spouses in the proportions in which they contributed to the account, or in equal proportions. Rather, it was said that in the absence of evidence indicating a contrary intention, the asset belonged to the person in whose name it is purchased or acquired and that spouse will be the sole beneficial owner of the relevant asset investment. Stamp J stated the principle in these terms:

Where a husband and wife open a joint account at a bank on terms that cheques may be drawn on the account by either of them, then, in my judgment, in the absence of facts or circumstances which indicate that the account was intended, or was kept, for some specific or limited purpose, each spouse can draw upon it not only for the benefit of both spouses but for his or her own benefit. Each spouse, in drawing money out of the account, is to be treated as doing so with the authority of the other and, in my judgment, if one of the spouses purchases a chattel for his own benefit or an investment in his or her own name, that chattel or investment belongs to the person in whose name it is purchased or invested: for in such a case there is, in my judgment, no equity in the other spouse to displace the legal ownership of the one in whose name the investment is purchased. What is purchased is not to be regarded as purchased out of a fund belonging to the spouses in the proportions in which they contribute to the account or in equal proportions, but out of a pool or fund of which they were, at law and in equity, joint tenants (456).

It also follows that if one of the spouses draws on the account to make a purchase in the joint names of the spouses, the property purchased, since it is purchased in joint names, is, prima facie, joint property and there is no equity to displace the joint legal ownership (456).

67 Stamp J distinguished Jones v Maynard [1951] Ch 572 where Vaisey J had held that investments paid for out of a joint account, although made in the name of the husband, were in fact made by him in his own name as trustee as to a moiety for his wife. Jones concerned a husband and wife who had a joint bank account upon which each was entitled to draw. They had no agreement about their respective rights in the account, but referred to it as 'a pool of our resources', 'our savings', and 'our joint savings'. After the wife had left the husband, the husband withdrew the balance of the account and invested it in his own name. The question which fell for determination was whether the investments were held on trust for his wife in equal shares, or whether they were held in the shares which they had contributed the moneys in the joint account. Vaisey J said, referring to Re Rogers' Question [1948] 1 All ER 328, that:

[T]he judge, after seeing and hearing the witnesses, should try to conclude what was in their minds at the time of the purchase and then make an order which, in the changed conditions, fairly gives effect in law to what the parties must be taken to have intended at the time of the transaction.

...

In my view a husband's earnings or salary, when the spouses have a common purse, and pool their resources, are earnings made on behalf of both; and the idea that years afterwards the contents of the pool can be dissected by taking an elaborate account as to how much was paid in by the husband or the wife, is quite inconsistent with the original fundamental idea of a joint purse or a common pool. In my view the money which goes into the pool becomes joint property ... That being my view, it follows that investments paid for out of the joint account, although made in the name of the husband, were in fact made by him in his own name as a trustee as to a moiety for his wife. If the investments out of the joint account had been made in the name of the wife alone, there is no doubt that the ordinary presumption of law would have applied and she would have been entitled to the investments; but as they were made in the name of the husband, it seems to me that the assumption of half and half is the one which I ought to apply (575).

68 Vaisey J was, of course, referring to the presumption of advancement which operates in favour of wives, but not husbands (and which some may regard as quaint): Mercier v Mercier [1903] 2 Ch 98; Moore v Whyte (1922) 22 SR(NSW) 570; March v March (1945) 67 WN (NSW) 111; however see Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 248 (Gibbs CJ).

69 Stamp J in Re Bishop distinguished Jones on the basis that, when the husband and wife had agreed that the investments were to be 'our savings', that gave the wife an interest in the investments made in the name of the husband (461 - 462). By contrast, his Honour observed that in Re Bishop, there was 'nothing whatever to suggest that either party suggested to the other that investments purchased were to be held on trust or that either party had the intention that the accumulations on the joint account should be invested and treated as "our savings"' (464).

70 Re Bishop was approved by Lord Upjohn in the House of Lords in Pettitt v Pettitt [1969] UKHL 5; [1970] AC 777, 815, and followed by Heerey J in the Federal Court in Re Reid (1998) 85 FCR 452, and by Wood J in In the Marriage of Fogarty (1976) 27 FLR 257, 264 - 265. Similar remarks were made in the context of a larceny charge from a joint bank account in Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326, 334 (Barwick CJ); however, see the remarks made by Menzies J at 338. However Finkelstein J disapproved of the decision in Ebner v The Official Trustee in Bankruptcy [2003] FCA 73; (2003) 126 FCR 281. His Honour held that the case was of doubtful authority, citing statements made by the Canadian Supreme Court in Rathwell v Rathwell [1978] 2 SCR 436 that:

I have difficulty in understanding the basis upon which it can be said that the joint owner who reaches the bank first can divert jointly-owned funds to the purchase of investments upon which the other joint owner will have no claim. In a decision of this court Re Daly; Daly v Brown, at p 148, a joint bank account case, McLellan J said: 'In a case of joint tenancy neither party is exclusive owner of the whole. Neither can appropriate the whole to himself' [27].

71 It is unnecessary to resolve this tension in the authorities in this case. It is sufficient to note that it is common ground that the ownership of an asset acquired using funds withdrawn from a joint bank account is to be determined by reference to the intention of the parties at the relevant time.

72 Of course, there was no opportunity to obtain direct evidence from either Mr or Mrs Argentieri with respect to their intention at the time the Telenet account was created, as both were deceased. The evidence given by Mr Fidock with respect to the instructions which he received from them was very limited. He said that they told him that they wished to act upon the advice which they had received from Mr Tatchell to ensure that as many assets as possible were placed in the sole name of Mr Argentieri. He also said that they both confirmed that they did not wish the capital of the term deposit to fall into Mrs Argentieri's estate. However, there was no evidence to the effect that Mr Fidock explained the distinction between legal and beneficial ownership to either Mr or Mrs Argentieri, or received any instructions other than that the deposit was to be in the name of Mr Argentieri, nor did Mr Fidock give evidence to the effect that he received instructions to the effect that Mrs Argentieri was to have no beneficial interest in the funds held in the account. Of course, any such instructions would have been directly contrary to Mr Fidock's evidence which was to the effect that one of the attractions of the Telenet account was that it provided an opportunity to protect Mrs Argentieri's interest in the funds deposited into that account. The proposition suggested by his counsel in closing submission to the effect that the interest to which he was referring was Mrs Argentieri's life estate under the will of Mr Argentieri was, of course, as the Tribunal pointed out to counsel, directly contradicted by Mr Fidock's evidence to the effect that he considered that her interest 'evaporated' upon Mr Argentieri's death.

73 Mr Fidock withdrew the funds from the Joint Saver account and deposited them into the Telenet account, which he opened, in his capacity as agent and attorney for Mr and Mrs Argentieri. In the absence of direct evidence of the intention of Mr and Mrs Argentieri, the best guide to their intention is the evidence given by Mr Fidock as to his understanding of the effect of these transactions given that it can be readily inferred that his understanding of that effect was consistent with the instructions he had been given.

74 We have set out at length the evidence which he gave with respect to his understanding of the effect of the transactions which he undertook on behalf of Mr and Mrs Argentieri. That evidence provided ample justification for the Tribunal's finding that he understood Mrs Argentieri to have an interest, in a proprietary sense, in the Telenet account until her husband died, at which time the interest 'evaporated'. However, as the Tribunal noted, he was unable to give any rational explanation for his understanding that Mrs Argentieri's interest was extinguished by her husband's death. Significantly for present purposes, Mr Fidock's case before the Tribunal was conducted on the basis that his understanding was correct, and therefore his affidavits were not misleading, as the interest which Mrs Argentieri had in the Telenet account had been extinguished by Mr Argentieri's death.

Principles relating to new issues on appeal

75 Absent an express provision to the contrary, appeals to this court are by way of a rehearing - Supreme Court (Court of Appeal) Rules, r 25. Yet, as Gibbs CJ, Wilson, Brennan and Dawson JJ noted in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish (7).

76 It is only in the most exceptional circumstances that a party will be permitted to raise a new argument after the case has been decided against him when he or she has failed, either deliberately or inadvertently, to put the argument during the hearing when given the opportunity to do so - see Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481. The plurality in Coulton endorsed statements by the Court of Appeal of New South Wales in the same matter, recognising the importance of this principle in light of the public interest in:

[T]he finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court (8).

77 This principle is not novel. In Rowe v Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1, Isaacs J said:

[I]t is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopt at the trial (24).

78 However, in some 'very exceptional cases', the failure of a party to put at trial a case formulated on appeal may not be conclusive against him - see Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 498 (Mason CJ, Wilson, Brennan & Dawson JJ); Maloney v Commissioner for Railways (1978) 52 ALJR 292; (1978) 18 ALR 147, 152; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 262 FLR 1; [2012] WASCA 50 [52].

79 It has been established that the opportunity to assert a new case should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant (Water Board (498); Rizhao [52]). As was noted in Rizhao [53], a court is most unlikely to allow a new argument on appeal where the point, if taken below, might have resulted in additional or different evidence being led - see Suttor v Gundowda Pty Ltd [1950] HCA 35 (1950) 81 CLR 418, 438 - 439; Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594, 608; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319.

80 Relevant portions of the cross-examination of Mr Fidock have been set out. It is clear that counsel for the LPCC cross-examined on the basis that Mr Fidock conceded that it was his understanding that Mrs Argentieri had an interest, in the proprietary sense, in the Telenet account prior to the death of Mr Argentieri. Indeed, Mr Fidock's evidence was to the effect that protection of that interest was one of his purposes in selecting the Telenet account as the appropriate banking product. It can be readily inferred that if, at the time cross-examination had taken place, it was known that Mr Fidock contended that his affidavits were not misleading because Mrs Argentieri had no interest in the Telenet account at any time after its creation, counsel would have taken a very different line in cross-examination.

81 It follows that this is not one of those cases in which it can be safely concluded that the proposition advanced on appeal, if advanced below, would not have resulted in any additional or different evidence being led. Allowing Mr Fidock to contend on appeal, for the first time, that Mrs Argentieri never had any interest in the Telenet account would be contrary to fundamental principles of procedural fairness and would cause irreparable prejudice to the LPCC. It would be contrary to the interests of justice to permit Mr Fidock to take such a course. We would dismiss the contentions advanced on his behalf on this issue for that reason.

82 However, if a different view were taken and the contentions advanced on appeal entertained, they should nevertheless be dismissed. For the reasons we have given, in the circumstances of this case, the best evidence of the intention of Mr and Mrs Argentieri is Mr Fidock's evidence of his understanding of the effect of the transaction which can be inferred to be consistent with the instructions he received. Further, the objective circumstances, and in particular the fact that the funds in the Telenet account were withdrawn from the Joint Saver account, and could only be withdrawn after being deposited back into the Joint Saver account support the conclusion that there was no intention to divest Mrs Argentieri of her joint interest in those funds. The opening of the Telenet account in the name of Mr Argentieri only is consistent with an intention to confer legal title in the chose in action upon him, for the purpose of discouraging a claim under the Inheritance Act in the event of Mrs Argentieri's death, but without altering the beneficial ownership in the funds. Accordingly, even if, contrary to our view, this court were to entertain the contentions advanced on behalf of Mr Fidock in relation to the ownership of the funds standing to the credit of the Telenet account, those contentions should be rejected and the relevant grounds of appeal dismissed. For the reasons we have given, Mr Fidock should not be allowed to raise this issue on appeal, and leave to appeal in respect of those relevant grounds should be refused.

Issue 2 - was there genuine room for disagreement with respect to the ownership of the property?

83 Although not precisely expressed in these terms, the second issue raised by Mr Fidock's grounds of appeal is only material if he succeeds in his contention that the Tribunal erred by concluding that Mrs Argentieri had a proprietary interest in the funds in the Telenet account. If that contention were upheld, the Tribunal's conclusion that irrespective of the true ownership of the assets, Mr Fidock was guilty of professional misconduct because there was genuine room for disagreement with respect to the ownership of those assets would provide an alternative means by which the Tribunal's conclusions could be sustained. However, as we would reject the contentions to the effect that the Tribunal erred in relation to the ownership of the funds in the Telenet account, for the reasons we have given, the question of whether there is an alternative means by which the Tribunal's conclusions can be sustained is immaterial. Leave to appeal should be refused for the same reasons as leave is refused in respect of the first issue raised on behalf of Mr Fidock.

84 Mr Fidock's contention that the Tribunal erred by not concluding that Mrs Argentieri had given informed consent to the funds in the Telenet account being treated as the property of the estate of Mr Argentieri may be shortly disposed of, on the basis that there was simply no evidence to that effect. In written submissions advanced in support of this ground, reference is made to the advice given by Mr Tatchell to Mrs Argentieri in March 2004. However, evidence about the issues other than severance of the property at Roseberry Avenue was vague and undocumented. At its highest, it went to transferring joint assets to Mr Argentieri's name to prevent an Inheritance Act claim. There was no evidence of advice to Mrs Argentieri about the prejudice to her arising from a transfer of assets to Mr Argentieri's name. In any event, as the Tribunal noted, evidence of advice given in March 2004 is quite insufficient to establish that Mrs Argentieri had given informed consent to banking and property transactions which took place more than two years later. Mr Fidock's contentions on this issue are misconceived and should be rejected. Leave to appeal should be refused.

Issue 4 - the Tribunal's characterisation of Mr Fidock's conduct as reckless

85 The Tribunal characterised Mr Fidock's conduct in swearing the three affidavits to which we have referred, and in using funds derived from the Telenet account in the purchase of the Forrest Street property, as reckless. Mr Fidock challenges that characterisation of his conduct, which is said to be inconsistent with the primary findings of fact made by the Tribunal.

86 In relation to the misleading affidavits, Mr Fidock had maintained both in his evidence-in-chief and throughout his cross-examination that at the time he swore the affidavits he believed that they were accurate. He also repeatedly testified that he believed that the interest which Mrs Argentieri had in the funds in the Telenet account had, for some reason which he was unable to explain, evaporated upon the death of her husband, from which it followed that at the time he dealt with the funds in that account, he did not believe that she had any interest in them. The Tribunal found his explanations to be 'unclear' (reasons [110]), but expressly found that it was not satisfied to the requisite standard that Mr Fidock knew the statements made in his affidavits to be false at the time he swore those affidavits (reasons at [118]).

87 The Tribunal also found, in effect, amongst other things, the following matters (reasons [110], [122] - [124]):

• that Mr Fidock was an experienced solicitor who practised in the field of probate and estates;
• that he knew that the Telenet account was opened in the 'name' of Mr Argentieri for artificial reasons to do with seeking to deflect a potential claim under the Inheritance Act, and not for the reason that the monies belonged solely to Mr Argentieri;
• that his assertion that Mrs Argentieri's interest in the Telenet account was extinguished upon the death of Mr Argentieri was not in accordance with established principle;
• that he provided no coherent explanation for his assertion that Mrs Argentieri's interest in the fund had been extinguished upon the death of Mr Argentieri;
• that his enquiries to ascertain the name of the account holder after Mr Argentieri's death did not constitute any genuine attempt to ascertain ownership of the Telenet account funds;
• that Mr Fidock appreciated, contrary to his assertion otherwise, the personal advantage to him if the Telenet account fell within Mr Argentieri's estate; and
• that Mr Fidock's personal interest was inconsistent with any claim to the monies by Mrs Argentieri to whom, as he knew, he owed fiduciary duties as her solicitor and agent.

88 The Tribunal found that the practitioner made the misleading statements in the affidavits recklessly, apparently in the sense discussed by Lord Nicholls in Royal Brunei Airlines (see reasons [120], [121], [125]). With reference to Royal Brunei Airlines, the Tribunal said [120]:

The nature of dishonesty and recklessness in the context of accessorial liability for breach of trust was considered by the Privy Council in Royal Brunei Airlines Bhd v Tan [1995] UKPC 4; [1995] 2 AC 378 (Royal Brunei). Lord Nicholls said at [389] ­ [391]:

... in the context of the accessory liability principle acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another's property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour.

...

In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others' property. Unless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries. Nor does an honest person in such a case deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless.

...

Acting in reckless disregard of others' rights or possible rights can be a tell­tale sign of dishonesty. An honest person would have regard to the circumstances known to him, including the nature and importance of the proposed transaction, the nature and importance of his role, the ordinary course of business, the degree of doubt, the practicability of the trustee or the third party proceeding otherwise and the seriousness of the adverse consequences to the beneficiaries. The circumstances will dictate which one or more of the possible courses should be taken by an honest person. He might, for instance, flatly decline to become involved. He might ask further questions. He might seek advice, or insist on further advice being obtained. He might advise the trustee of the risks but then proceed with his role in the transaction. He might do many things. Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct.

Likewise, when called upon to decide whether a person was acting honestly, a court will look at all the circumstances known to the third party at the time. The court will also have regard to personal attributes of the third party, such as his experience and intelligence, and the reason why he acted as he did.

89 The Tribunal then continued (reasons [126] - [129]):

The Tribunal considers that Ground 2 of the complaint has been made out in so far as it relates to the Telenet Account. The respondent swore affidavits on 16 June 2006, 23 June 2006 and 3 July 2006 which were misleading as to the ownership of the Telenet Account funds and he did so reckless as to whether or not the affidavits were misleading.

'Professional misconduct' is defined in s 403 of the LP Act as follows:

'professional misconduct' includes ­

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

The duty of legal practitioners to not mislead the Court is at the heart of a practitioner's duty as an officer of the Court ­ see: Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 at [61]. Swearing an affidavit recklessly as to whether or not it is misleading is conduct which would reasonably be regarded as disgraceful or dishonourable by practitioners of good repute and competence and as falling substantially short of the standard of professional conduct observed or approved by members of the profession of good repute ­ see: Kyle v Legal Practitioners Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle) at [61] (Parker J), Legal Profession Complaints Committee and Caine [2010] WASAT 178 (Caine) at [15]).

The Tribunal finds that the respondent engaged in professional misconduct within s 403 of the LP Act in connection with the affidavits.

90 Turning to the Tribunal's conclusions with respect to the proper characterisation to be given to Mr Fidock's conduct in using funds from the Telenet account to acquire the Forrest Street property, the Tribunal said:

The Committee contended in Ground 4 that the respondent treated the funds used to purchase the Forrest Street Property as property of the estate of Mr Argentieri in circumstances where he knew that Mrs Argentieri was or may have been the owner of those funds. For the reasons given in respect of Ground 2, the Tribunal considers that the respondent did not have actual knowledge that the Telenet Account funds were not the exclusive property of Mr Argentieri. However, again for those reasons, the Tribunal considers that the respondent was reckless whether [sic] Mrs Argentieri was the owner of the Telenet Account funds. Accordingly, the Tribunal considers that the respondent acted recklessly purchasing the Forrest Street Property with funds derived from the estate of Mr Argentieri. Applying Royal Brunei, the respondent's conduct must be regarded as dishonest [147].

91 In its subsequent reasons for decision on penalty, the Tribunal again said, in effect, that it considered that Mr Fidock's reckless conduct evinced dishonesty. In Legal Profession Complaints Committee v Fidock [2011] WASAT 78 (S) the Tribunal said [19]:

The practitioner argued that the Tribunal did not find that the conduct of the practitioner was 'recklessness coloured by dishonesty' (see practitioner's submissions at para 14.6). The Tribunal does not accept this proposition. The finding made by the Tribunal at [125] in the Reasons was in terms of the allegation made by the Committee, which was that the practitioner's conduct was 'reckless'. However, the citation from Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] UKPC 4; [1995] 2 AC 378 differentiates between mere carelessness, which does not support a conclusion of dishonesty, and recklessness, which the Privy Council said 'can be a tell­tale sign of dishonesty'. The circumstances which lead the Tribunal to conclude that there was a sufficient element of dishonesty are set out at [122] to [124] of the Reasons. The Tribunal also made an explicit finding of dishonesty at [147] of its Reasons.

92 A number of observations may be made about the Tribunal's approach.

93 First, the language of recklessness as applied to false statements is conventionally associated with the tort of deceit, and typically, with the judgment of Lord Herschell in Derry v Peek [1889] UKHL 1; (1889) 14 App Cas 337, 374. Although the Tribunal referred to recklessness in the context of false statements, it made no reference to this line of authority. Further, the Tribunal's citation of Royal Brunei Airlines was preceded by an acknowledgement that the LPCC's allegation was to the effect that Mr Fidock 'made the affidavit recklessly whether the affidavit was true or not'. In that context, the authorities dealing with reckless misstatement would have provided a more pertinent source of guidance to the Tribunal in relation to the misleading affidavits than authorities on the topic of accessorial liability for breach of trust.

94 The observations of Lord Herschell in Derry v Peek were adopted in Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 [113], and in Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 [2] by Gummow, Hayne and Heydon JJ. In Banditt [2] their Honours said that to sustain an action in deceit, it must be shown that the false representation was made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. But (3) is but an instance of (2), because one who makes a statement under the circumstances in (3) can have no real belief in the truth of what he or she states.

95 In Banditt [3] their Honours also adopted observations to the effect that a person who appreciates the risk that his or her statement may not be true, but who nevertheless asserts it to be true, is recklessly careless or indifferent as to the truth of the statement and can have no real or genuine belief in its truth.

96 The well known observations of Bowen LJ in Angus v Clifford [1891] 2 Ch 463, 470 - 471 are also pertinent in this regard:

It always has been the law that a man must have a belief, because, as Lord Bramwell points out in the case of Smith v Chadwick and Lord Herschell in Peek v Derry, a man who affirms that he knows a thing, affirms implicitly that he believes it, and if he does not believe it, that affirmation is false. It is not the less false because the affirmation he makes is an affirmation about the state of his own mind. A man may tell a lie about the state of his own mind, just as much as he can tell a lie about the state of the weather, or the state of his own digestion. It makes, to be sure, the inquiry a difficult and complicated one, and probably an obscure one, as to what the state of his mind may have been, but once arrive at the inference of fact that the state of his mind was to his own knowledge not that which he describes it as being, then he has told a lie, just as if he made an intentional misstatement of something outside his own mind, and visible to the eyes of all men. A great deal of the argument which has been addressed to the Court, arises, as it seems to me, under cover of the fallacious use, first of all, of the principle that you cannot look into a man's mind. It is said you cannot do that: therefore, what follows? It is said that you are to have fixed rules to tell you that he must have meant something, one way or the other, when certain exterior phenomena arise. The answer is that there is no such thing as an absolute criterion which gives you a certain index to a man's mind. There is nothing outside his mind which is an absolute indication of what is going on inside. So far from saying that you cannot look into a man's mind, you must look into it, if you are going to find fraud against him; and unless you think you see what must have been in his mind, you cannot find him guilty of fraud. It seems to me that a second cause from which a fallacious view arises is from the use of the word 'reckless'. Now, what is the old common law direction to juries? And it is not because I think that common law is better than equity that I go back to it - but it is because an action for deceit is a common law action - the old direction, time out of mind, was this, did he know that the statement was false, was he conscious when he made it that it was false, or if not, did he make it without knowing whether it was false, and without caring? Not caring, in that context, did not mean not taking care, it meant indifference to the truth, the moral obliquity which consists in a wilful disregard of the importance of truth, and unless you keep it clear that that is the true meaning of the term, you are constantly in danger of confusing the evidence from which the inference of dishonesty in the mind may be drawn - evidence which consists in a great many cases of gross want of caution - with the inference of fraud, or of dishonesty itself, which has to be drawn after you have weighed all the evidence. (emphasis added)

97 Similarly, in Le Lievre v Gould (1893) 1 QB 497, 500, Bowen LJ said:

There seems to have been some sort of an idea that ... the expression 'not caring' has something to do with his not taking care. But that expression did not mean not taking care to find out whether the statement was true or false; it meant not caring in the man's own heart and conscience whether it was true or false - and that would be wicked indifference and recklessness. (emphasis added)

98 A solicitor who falsely swears an affidavit, recklessly careless whether it be true or false in this sense, would ordinarily be guilty of professional misconduct.

99 Secondly, Kyle, to which the Tribunal made reference, was a case in which the practitioner had deliberately or knowingly misled the court - see Ipp J [6] - [12]; Steytler J [22] - [23]; Parker J [52] - [54], [69]. It was not a case of a practitioner 'recklessly' misleading the court. In Kyle, Ipp J said [6]:

It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable: see Re Cooke (1889) 5 TLR 407 at 408, per Lord Esher MR (with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the court: see Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297, per Denning LJ; Vernon v Bosley (No 2) [1997] 3 WLR 683; [1997] 1 All ER 614. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. There can be no professional misconduct where a practitioner innocently misleads a court; that is, without knowledge that the court is being misled. I accept, therefore, the submissions made by senior counsel that an intention to deceive, or dishonesty, is a necessary element of misleading the court.

100 With respect to Ipp J, professional misconduct is not necessarily confined to the situation where a practitioner knowingly misleads the court. Candour and honesty are essential ingredients of the practitioner's obligation to the court. Thus, for example, a practitioner who makes a false assertion in closing submissions to the court about the facts, in the absence of any genuine belief that the evidence supports such an assertion, would ordinarily be acting dishonestly toward the court even if the practitioner did not know that the statement was misleading. Also, as noted above, if a solicitor swears an affidavit recklessly, careless whether it be true or false in the sense discussed in the authorities on fraudulent misrepresentation, the practitioner's conduct will generally properly be characterised as professional misconduct.

101 Moreover, there is no reason in principle why conduct which can be classified as negligent cannot amount to professional misconduct: Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19, 25. Also, as was observed in the Council of Queensland Law Society v Wright [2001] QCA 58 [67]:

The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners' submissions to the court. (emphasis added)

102 Thus, for example, a misleading statement to the court made by a practitioner on a matter of importance to the disposition of the case, where the misstatement is made as a result of gross carelessness, may, depending on all the circumstances, involve a 'substantial ... failure to reach or maintain a reasonable standard of competence and diligence' and thereby constitute professional misconduct within the meaning of s 403 of the 2008 Act. The importance of practitioners providing reliable information to the court applies with heightened force to a solemn occasion such as the swearing of an affidavit by a solicitor. Its significance is underscored where the affidavit is in support of an ex parte application.

103 Thirdly, it is regrettable that the Tribunal approached the issue of the characterisation of Mr Fidock's conduct by reference to the observations made by Lord Nicholls in Royal Brunei Airlines. The principles enunciated by Lord Nicholls in Royal Brunei Airlines were expressed in a very different context to that which confronted the Tribunal - namely, in the context of defining the scope of accessorial liability arising from the provision of assistance to a trustee or fiduciary who acts in breach of his or her fiduciary duties with knowledge of the dishonest or fraudulent purpose of the fiduciary. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, the High Court of Australia expressly left open the question of whether the decision in Royal Brunei Airlines should be accepted as modifying the law of Australia (per curiam [164] - [165]). Also, reliance upon complex principles enunciated in such a different context had the potential to divert the Tribunal from the essential question which it was required to address, which was whether Mr Fidock's conduct constituted professional misconduct within the meaning of s 403 of the 2008 Act.

104 As noted earlier, the case before the Tribunal appears to have been conducted on the basis that the meaning properly given to that expression was that enunciated in Kyle with the result that the question for the Tribunal was whether Mr Fidock's conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or whether it, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. Although the Tribunal quoted s 403 of the 2008 Act, it is not clear whether and if so how it also directed attention to whether Mr Fidock's conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence or whether his conduct was such that if established, it would justify a finding that he was not a fit and proper person to engage in legal practice.

105 Nevertheless, ultimately the Tribunal's findings of primary fact are sufficient to justify the findings of professional misconduct. It appears from the findings referred to in [87] above that, in effect, the Tribunal found that Mr Fidock knew sufficient to put him on inquiry as to the true ownership of the Telenet funds on Mr Argentieri's death and whether Mrs Argentieri might have a claim to them, but was reckless or indifferent in the discharge of his duty to Mrs Argentieri to ascertain the true position. A substantial amount of money was involved and Mr Fidock advanced his own interests in disregard of, and in conflict with, the interests of his principal and client, Mrs Argentieri. Such conduct was not the conduct of an honest solicitor and could be characterised as either involving a substantial failure to reach or maintain a reasonable standard of competence and diligence (s 403(1)(a) of the 2008 Act), or conduct which would reasonably be regarded as dishonourable or disgraceful by practitioners of good repute and competence.

106 Similarly, the effect of the findings is that Mr Fidock knew sufficient to indicate that Mrs Argentieri may have a claim to the money and he was thereby reckless or indifferent to the importance of the truth in swearing his affidavits in support of his application for probate. Even if, as the Tribunal found, Mr Fidock did not actually know that the affidavits were false, that was sufficient to warrant the finding of professional misconduct, either by reference to Kyle or to s 403(1)(a) of the 2008 Act.

107 The lack of clarity in the reasons given by the Tribunal on the subject of recklessness is sufficient to justify the grant of leave to appeal from that aspect of the Tribunal's decision. However, for the reasons we have given, the appeal should be dismissed.

108 For these reasons, leave to appeal should be granted in respect of those grounds of appeal which challenge the Tribunal's decision to characterise Mr Fidock's conduct as reckless, and an extension of time should be granted to enable that appeal to be commenced, but the appeal should be dismissed. Leave to appeal should be refused in respect of all other grounds.